From the Bench: Effective Advocacy (State Bar of Texas Annual Meeting 2023)

Episode Notes

Transcript

[Music]

Intro: Welcome to State Bar of Texas podcast, your monthly source for conversations and curated content to improve your law practice, with your host, Rocky Dhir.

Rocky Dhir: Hello and welcome to another episode of the State Bar of Texas podcast. We are recording live from our State Bar Annual Meeting in Austin, Texas. This is your host, Rocky Dhir. Joining me now, we got three amazing panelists. We’ve got Judges Amy Meachum, Judge Jessica Mangrum and Judge Martin Hoffman all joining us here today. Now before we get started, we’re going to be talking about effective advocacy. This is a view from the bench. So please tell us a little bit little more about yourselves. So, where do you work? What do you do? And let’s start first of all with you Judge Meachum.

Judge Amy Meachum: All right. I’m not a judge here in Travis County. I’ve been on the bench about 13 years. I’m in the middle of my fourth term now, right? My third term, I can’t remember.

Rocky Dhir: Who’s counting?

Judge Amy Meachum: It’s been so long.

Rocky Dhir: Who do these counting anymore?

Judge Amy Meachum: We are in Travis County. We have a central docket. I have a family and civil bench. I do a little bit of everything on the family and civil side and that’s me.

Rocky Dhir: Judge Mangrum, you’re new at this?

Judge Jessica Mangrum: That’s right. I like to say I’m a COVID or Zoom Judge. I was elected in 2020 and took the bench January of ’21.

Rocky Dhir: Wow, okay. That is something. Yeah.

Judge Jessica Mangrum: The job I ran for ended up being very different in practice and experience.

Rocky Dhir: And which bench are you in?

Judge Jessica Mangrum: The 200th District Court. It’s another civil and family trial bench here in Travis County.

Judge Amy Meachum: We diversified a lot. You have Judge Meacham and Judge Mangrum with the 201st and the 200 Courts of Travis County. So you varied up a lot. You have two judge and judges with the exact courts numerically next to each other.

Judge Martin Hoffman: So much for diversity.

Judge Jessica Mangrum: And we’re both originally from McLennan County.

Rocky Dhir: I’m thinking implicit bias, I don’t know about you guys. Judge Martin Hoffman, you and I know each other, but a lot of these folks don’t know you.

Judge Martin Hoffman: So I’m Judge Martin Hoffman of the 68th District Court of Dallas County. So I guess I’m the diversity here. I am a civil judge.

Rocky Dhir: Wow, we never get those.

Judge Martin Hoffman: I was civil judge, so we handle personal injury cases, commercial, real estate, employment law. We don’t do any family law. We don’t do any probate, no criminal. So it’s specialized court. I’ve been on the bench since 2007. So I was elected in 2006 and the way Rocky and I know each other for a variety of different ways, but mostly through the Mac Taylor Inn of Court where we have served together on that, have been part of that group together for probably close to 15-16 years at this point.

Rocky Dhir: Been a long time, been a long time and yet I still get to be part of it. Like Hoffman didn’t kick me out yet.

Judge Amy Meachum: He ascended to the presidency yet or is he now.

Judge Martin Hoffman: No, he’s president now.

Judge Amy Meachum: So maybe your time is coming?

Rocky Dhir: He could do something about this. He’s both a judge and a president.

Judge Martin Hoffman: That’s scary.

Rocky Dhir: Yeah, crazy. So guys, let’s get down to brass tacks here, all right? So we’re talking. We’re talking about advocacy from the judge’s perspectives. Now we hear a lot about this. I think it’s not the first-time judges have talked effective advocacy from the bench, y’all took this — and it’s Texas, so I can say y’all. Y’all took this in a slightly different direction. You were not talking not so much about oral argument or briefing, this was more about maybe technology and how best to harness it for lawyers when they’re in their courtrooms. So maybe Judge Meachum, let’s start with you. What were your thoughts on how lawyers can best better harness technology?

Judge Amy Meachum: Well I think we start from the premise that we basically had 30 years of advancements in three years.

Rocky Dhir: Yeah right.

Judge Amy Meachum: We basically made such leaps and bounds and we’ll just have to realize that as a profession. So I think our point was the first thing you do now when you’re considering advocacy is you’re considering the format for your hearing. Is it going to be in 2D or is it going to be in 3D? And we didn’t want to take that out of the equation. But the basics I think, what all three of us kind of realize were the basics of effective advocacy even though you have to first think about the way you’re going to be advocating. Are you going to be on Zoom or are you going to be in person? The basics remain the same. There are some things.

Rocky Dhir: How is it changed though? During COVID, there was a lot of talk about this and I’m sure Judge Mangrum, you came in during COVID, so you saw it firsthand, what’s the difference from an advocate standpoint, from a judge’s standpoint when it’s in-person versus on Zoom and how do you think lawyers should handle themselves differently in each circumstance?

Judge Jessica Mangrum: So when witnesses are appearing on a Zoom screen, it is very different from people appearing in front of you physically in a courtroom, and when most people go to the courthouse to appear in court, they dress and appear a certain way.

Rocky Dhir: Sure.

(00:05:07)

Judge Jessica Mangrum: People who log on from their home computer or smartphone may not go through those same things.

Rocky Dhir: There may not be pants involved, I get you.

Judge Jessica Mangrum: Exactly. We have had everything from witnesses not dressed appropriately, to witnesses driving their vehicle while the court hearing is proceeding, witnesses smoking, witnesses eating, witnesses laying down in their bed. So there is some preparation that effective advocates are going to check in with these people and prepare them for how they should look and appear when participating in a remote court proceeding.

Rocky Dhir: Did you guys talk at all about — say, brief writing, written advocacy and how best to harness technology that way? I know some judges are now talking about writing under the assumption that this is going to be viewed on a screen as opposed to somebody printing it out and reading on paper. Does that change the equation at all? Judge Hoffman, what do you think? You’ve been doing this awhile.

Judge Martin Hoffman: I’ve been doing this awhile, so that is not necessarily a Zoom issue. We are basically paperless in Dallas County. I imagine you guys. I’ve seen your setup here in Travis County. Most counties in Texas are paperless and so when you’re doing your brief writing, you got to really think about — if I’m submitting 2,000 pages of exhibits or hundreds of pages of exhibits, is the judge going to be able to find the exhibit if it’s purely paperless?” So one of the things that I strongly recommend to people who are in that situation where they’re providing voluminous briefing is, “Is this a situation where I should contact the court coordinator?” I guess you call it the court assistant and do they need a binder or do they want this in paper form if it’s a voluminous briefing? Because I will tell you that a lot of times it is very difficult to sort through that unless there’s really well done hyperlinks or things like that, the different levels of the briefing.

So I do think that’s something people need to take into account is that the default for most judges in Texas is that we’re going to read this on a screen. If I provide a voluminous briefing, it can be very hard to access that. It can be very difficult and especially what I’ve seen in our court, we use Odyssey. They’ve just started using Odyssey, is that if you have a case with hundreds of documents that have already been filed, it can be very difficult to even find those on Odyssey if they’re not properly labeled by the clerk’s office. So having a binder that has all of the briefing on both sides I think is far more effective. I tell people, “If you’ve submitted to me a binder with just your briefing and not the other side’s briefing, it indicates to me that you’re not confident in your argument.” So any good advocate is going to submit binders on both sides, at least in my situation.

Rocky Dhir: That’s an issue I haven’t thought about — actually giving a nod to the other side and including that, what are your views on white space on a brief? The effective use of white space as opposed to just having typing everywhere? Is that a factor at all when you’re reading a brief? If it’s on a screen, do you think, “Oh wow.” They’ve done a good job briefing because it’s not just crowded with text or does that not — I’ve heard some judges talk about that.

Judge Amy Meachum: I mean we aren’t appellate judges, we are state trial judges and so we don’t look at the just briefing, we have a lot. It’s such an oral advocacy, presentation in state district court. I really think that’s different than maybe Federal Court or the Appellate Courts in Texas. State District Court, I think most — all of them is very much oral advocacy much more than is briefing. It’s not not briefing, but one thing I think you’re right about is that now we expect briefs to look more like what social media looks like, are more like pictures.

Rocky Dhir: Hashtags.

Judge Amy Meachum: More hashtags, more bullet points. It’s less all text to your point and the good briefs that you’ll see now might have a picture inserted of the actual accident or it might have, in a car accident case, you actually would have a picture of the damage.  You might include the picture of the medical records as opposed to just citing to it.  You are doing to your point like a lot more visually appealing stylistically briefing now that was ever done before. At least, I think if you’re moving with the times you are, that’s part of it.

Rocky Dhir: Let’s assume for a moment that you’re in court in 3D doing this in person and you’re giving some piece of oral advocacy. How has technology changed that over the years like say maybe pre-COVID to now, are there are new technological innovations that lawyers need to be aware of when they’re making an argument to the court that maybe they didn’t think to use before?

(00:10:03)

Judge Martin Hoffman: So I think one of the biggest changes is that we’ve had AV equipment in the courts for quite some time but now we have the ability to access Zoom. So if you have a situation where you have a witness that you need to call in a temporary injunction or any other type of evidentiary hearing the court said — we talked about this at the panel. The courts in Texas are moving more and more towards in making courtrooms more Zoom-friendly. So you can have witnesses come in and be able to be seen more effectively. So Travis County has done an amazing job. Judge Meachum was very kind to give me a tour of their new courthouse. It’s amazing.

Rocky Dhir: I want a tour.

Judge Martin Hoffman: I’m very courtroom jealous right now before — there are courthouse.

Rocky Dhir: I got courtroom envy.

Judge Martin Hoffman: Yeah, exactly. Exactly. So that’s something to be aware of is that if you have a witness — one of my first hearings during COVID, we had a witness testify from Spain. That’s something you never could have done really before COVID or was very, very difficult to do before COVID. Now, it’s almost effortless. So taking advantage of that, being able to bring in witnesses you may not be able to bring in. I think that’s a big change and what was done before versus what is done now and a lot of courts are — a lot of it, I think Urban Courts are really embracing at Collin County and Dallas County and Travis County. I don’t know as much about the rural counties if they’re doing that as much, but figure out the court would technology that’s available and utilize it to its fullest. Dallas County is actually going through a process right now where we’re upgrading. It should be done by the end of the year, but Travis County has already done. Be aware of what that courtroom technology can do for you.

Rocky Dhir: Judge Mangrum you’ve seen — I guess so far about half of your term has been in COVID and the other half post-COVID. I can see where we’re having witnesses appear via Zoom can certainly be more efficient both in terms of cost, in terms of time. But to those lawyers or maybe those parties who can afford to bring their witnesses into the courtroom and have them be there present and in-person, do they have some kind of an advantage in terms of their ability to better present their case because now everybody’s in the courtroom?

Judge Jessica Mangrum: It probably depends on what the issues are and what type, whether it’s a hearing or a trial and what type of trial it is. So I think that it would vary from case to case, but we’ve learned a lot through the Zoom experience and you can see and hear and judge the credibility of witnesses even if they’re a Brady Bunch screen on Zoom with you. We’ve had bench trials. We’ve had jury trials where the entire proceeding was remote and frankly, I think much to the surprise of those colleagues on the bench who were very reluctant to move to that forum were surprised how well it works. You can actually see people right up close and personal on a Zoom screen and you can see what’s in their home office or their living room. It’s nice to be in-person when you can. It’s not always essential and I think you can have good results with either honestly, at the end of the day.

Rocky Dhir: I don’t know if this concern ever gets voiced when you’re in the courtroom, but could there be — when you’re talking about the use of technology or even going old school and bring everybody into the courtroom, could this create a situation where certain parties, specially well-heeled parties are now at an advantage because they can make use of the most effective technologies however expensive they might be or their attorneys have the staff to put in the proper hyperlinks or do the things necessary to use technology to the maximum and they’re able to now bring in people in person and avoid all those other distractions and on Zoom while driving and all those things. Do you foresee a situation where now cost disparities can start creating inequities in terms of reaching the merits of the case?

Judge Jessica Mangrum: I think all of us don’t want to do hybrid, right? What you’re talking about where one person is on a screen and one person is in the courtroom.

Rocky Dhir: Yeah.

Judge Jessica Mangrum: We had to make a call in Travis County, look at the new rules promulgated by the Texas Supreme Court, look at the laws passed by the legislature and go, “Are we going to make our default rule in person? Are we going to make our default rule virtual?” Because really you got to choose one or the other kind of as your default or you do it like Judge Hoffman does it and you actually have a day of in-person and a day of virtual.

(00:15:03)

But I know even in his system, you got to have one when parties don’t agree because what none of us really like to do, we talked about this a little earlier. None of us really like to do hybrid because of the reason you just mentioned. It’s not very effective. You want to either have people in a virtual platform or in an in-person platform if they’re arguing.

Rocky Dhir: Sure.

Judge Jessica Mangrum: The difference, the one exception being if all the lawyers and the judges are in-person, you can take that virtual witness on a screen. That works pretty well, but they’re more a passive actor in the hearing, a passive actor in the trial, and not an active participant. So I think for all of us, we’re trying to avoid exactly what you just talked about, right? Is a disparity of access to justice. I think one of the things that was surprising for every judge, you could have knocked me over, that pro se litigants and that litigants with less means would actually be able to access just as better virtually.

I would never have thought that. For whatever reason in my brain I was like, “Oh the technology, they’re not going to be able to do it. They’re not going to be able to figure it out.”

Rocky Dhir: They know everybody knows it. Yeah.

Judge Jessica Mangrum: Yet they figured it out immediately, were immediately able to access courts better more frequently without problems with finding child care, without problems of parking and finding transportation. So in many aspects, they like it better such in our family law docket because they can just access courts more easily. But in your high-level advocacy cases, to your point like the places where both sides have a lot of money, you have one of these really big trials that makes it in the media.

Rocky Dhir: Sure, right.

Judge Jessica Mangrum: Everybody, I think would like those to be in person and they have the money and the means to put their advocacy case in an effective trial in person, but you still got to know technology. You got to know the technology of the courtroom, you just aren’t in technology on a screen. You’re in technology live and in person and using things where you are, which is in the physical space of the courtroom.

Judge Martin Hoffman: Let me comment just real quick on that. So she mentioned kind of my docket and what I’ve seen. As you know Rocky, that I go to a lot of different events including the Mac Taylor Inn that we’re in and people come up to me all the time. They say, “Judge, I can’t wait to be in person.” I just can’t wait. I’m sick of these Zoom hearings. Let’s get in person and I’m like, “Okay, great.” I heard that over and over and over again. So, I have two days where I have hearings, Monday’s all day, Friday’s a half day and I said, “Well, let’s start giving people the opportunity to be in person. I want to give them that opportunity. We are going to start off with Friday in person. I’ll probably gradually flip it because everybody’s going so full and on Mondays I’m going to do all my Zoom hearings.

What I’ve learned through experience is that my Monday docket which is all on Zoom, I almost never get complaints about being on Zoom. It’s like people embrace it. They don’t complain about it. On Fridays when I’m in person, almost every week I had a complaint from an attorney saying, “Judge, do I have to show up in person? Why are you making me?” Even though we tell them — Friday is only in person, can we just do — in fact, I had a hearing just this last Friday where the attorneys even though they knew was supposed to be in person, I had to do a hearing on my phone because I had an event where I had to talk to them on my phone and do it over Zoom. It was not the ideal way to do it. The only way I could do it because they were so insistent about not coming in the courtroom. So sometimes they say they do protest too much. I think attorney sometimes is like, “Oh we hate Zoom” but when it comes right down to it, what I’ve seen.

Rocky Dhir: It’s more convenient.

Judge Martin Hoffman: They are going to use it because it’s such a cost savings for their clients and such a time saving. We have a dismissal docket where attorneys come down and they’re going to be in front of me for two minutes at most. Do you really want to come all the way to the courthouse and spend all that time and effort and parking and all that kind of stuff?

Rocky Dhir: Parking.

Judge Martin Hoffman: When you can do it in two minutes and over Zoom. This is something I think that’s here to stay. We got to use it effectively, we don’t need to use it in every case, but I think it really is a huge cost savings.

Rocky Dhir: That’s a great way to end because I’m telling you guys, we are unfortunately at the end of the program. It’s been fascinating, but I want to thank our judges, Judge Meacham, Judge Mangrum and Judge Hoffman. Thank you all for being here today.

Judge Amy Meachum: Thank you.

Judge Jessica Mangrum: Thanks for having us.

Judge Martin Hoffman: Thank you. It was great.

Rocky Dhir: Now, if our listeners have questions, they want to follow up, we have any lawyers who want to maybe ask some follow-up questions, what’s the best way to reach you? So, Judge Meachum let’s start with you.

Judge Amy Meachum: Wow, I don’t usually give my email out on a public forum like this but I tell you what, I enjoyed this so much. If somebody listen this long to effective advocacy, I’m [email protected].

(00:20:06)

Rocky Dhir: Okay, there we go. That’s why you tune in, people. You get stuff like this. Okay. Judge Mangrum.

Judge Jessica Mangrum: All right, well I will match what Judge Meacham did and provide my email address with the reminder no ex parte communications.

Rocky Dhir: Of course.

Judge Jessica Mangrum: So nothing about a case. [email protected].

Rocky Dhir: Nice, Judge Hoffman.

Judge Martin Hoffman: And I’m amy.meacham@travis. No, I’m just kidding.

Rocky Dhir: You’re amy.mangrum. Yeah.

Judge Martin Hoffman: I don’t usually give it out either but I guess I feel a little peer pressured here. So [email protected].

Rocky Dhir: Wonderful.

Judge Amy Meachum: If we get a lot of bad communications we’ll know who to blame.

Judge Martin Hoffman: Yes, we’re going to forward to you Rocky.

Rocky Dhir: Yes and my email address is martin.hoffman. Well that is all the time we have for this installment of State Bar of Texas Podcast. I want to thank our guest. Thank you guys for joining us and also thank you to our listeners for tuning in and if you like what you heard, don’t forget, please rate and review us in Apple Podcast, Google Podcast, Spotify, Amazon Music or your favorite podcasting app. I’m Rocky Dhir, until next time. Thanks for listening.

Outro: If you’d like more information about today’s show, please visit legaltalknetwork.com. Go to texasbar.com/podcast. Subscribe via Apple Podcast and RSS. Find both the State Bar of Texas and Legal Talk Network on Twitter, Facebook and LinkedIn, or download the free app from Legal Talk Network in Google Play and iTunes. The views expressed by the participants of this program are their own and do not represent the views of nor are they endorsed by The State Bar of Texas, Legal Talk Network, or their respective officers, directors, employees, agents, representatives, shareholders and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.

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